85 P. 447 | Utah | 1906
The defendant was convicted of the crime of adultery alleged to have been committed on June 18, 1904, at Provo, Utah, with one Delia Nance, an unmarried woman, and was sentenced therefor to a term in the penitentiary. The record
The action of the court in denying defendant’s motion for a continuance is now assigned as error. In support of the imotion defendant filed an affidavit in which he, in substance, alleges he is informed that all three of the witnesses therein named are temporarily absent from the state; that one of the witnesses, Alto' Carter, was in Colorado; that affiant (defendant), immediately upon the cause being set for trial (December 23, 1904, sixteen days before the ease was called for trial ), caused a subpoena to be issued for said witness but that the “time was so short that it was impossible for this affi-ant to obtain the presence of said witness at this term of court, notwithstanding the fact that said witness has expressed a willingness to be present in court and testify in his behalf.” The affidavit then proceeds to recite what affiant expected to prove by the absent witness. It does not appear, however, that defendant communicated or attempted to communicate with the witness, notwithstanding he was advised of her whereabouts and that she had expressed a willingness to be present at the trial and testify. Nor does it appear that-any effort was made to- procure her attendance. Neither does the affiant state facts tending to show that there was any probability that this, or either of the other two absent witnesses,
Delia Nance, the woman with whom it is alleged defendant committed the crime of which he stands convicted, was called as a witness and testified that defendant was criminally intimate with her on June 8, 1904, at Prow, Utah, and that, as a result of their criminal conduct, she became pregnant; that defendant after he was arrested for the crime prevailed upon her to go to her home in Colorado in order to avoid testifying against him; that on the night of September 5, 1904, the defendant took her to Springville in a buggy, at which point he gave her money, and she took the train for Colorado; that it was understood before they parted that defendant would ship her trunk to her later on; that soon after arriving at her destination in Colorado she received, through the United States mail, an unsigned typewritten letter postmarked at Provo> Utah; that she had seen the defendant write, and that the address on the envelope was in his handwriting ; that soon after the receipt of this letter she wrote a letter to defendant, deposited the same in the postoffice, postage prepaid, and addressed to him at Provo, Utah, and stated to him in the letter that she wanted her trunk and if he didn’t send it she would return to Provo and get it, and that she made inquiries about the criminal case pending against .defendant; that soon thereafter she received another unsigned typewritten letter postmarked Provo, Utah, which was introduced in evidence, and, in part, states: “Your trunk will be there in a few days, so you need not worry about that. . . . There hasn’t been anything done yet and won’t if you don’t come'back for awhile. Of course, after this is settled in court, it would be all right for you to come. . . .
It is now urged that the court erred in permitting Delia Nance, who claimed to have seen the defendant write but once, to testify that the letter written by hand which she claimed was received by her, and the address on the envelope in which it came, was in the defendant’s handwriting. The rule is well settled that writing may be proved by evidence of a witness who has seen the person write. In 1 Greenleaf on Ev., 577 it is said:
“It is held sufficient for this purpose that the witness has seen him write but onee and then only his name. The proof in such ease may be very light, but the jury will be permitted to weigh it.”
In 2 Jones on Ev., section 559, the author says:
“But whatever degree of weight his testimony may deserve, which is a question exclusively for the jury, it is an established rule that if one has seen the person write, he will be competent to speak as to his handwriting; and this is true, although the impression on the witness may be faint and inaccurate. Thus, the testimony has been admitted although the witness has not seen the person write for many years before the trial and although he has only seen the person write on a single occasion, and even though he only saw the person write his name, or even his sur; name.”
And again:
“It is not necessary that the witness should be an expert. These are matters affecting not the admissibility but the weight of such testimony.”
McKelvey, in bis work on Evidence, p. 360, says:
“It has from early times been settled that no great degree of familiarity with handwriting is required to render a witness competent to give an ojjinion. If he has seen the person write a single time, it has generally been held sufficient.” (Hammond v. Varian, 54 N. Y. 398; McNair v. Commonwealth, 26 Pa. 388; Rideout v. Newton, 17 N. H. 71; Pepper v. Barnett, 22 Grat. [Va.], 405; Keith v. Lothrop, 10 Cush. [Mass.], 453; Hopkins v. Megquire, 35 Me. 78; Edelen v. Gough, 8 Gill. [Md.], 87; 17 Cyc. 157.)
Appellant’s next complaint is that the court erred, first, in permitting Delia Nance to testify to the contents of the letters she claimed to have written to- defendant from Colorado; and, second, by permitting the state to introduce in evidence the unsigned letters which she claimed to have received through the mails in Colorado purporting to be in answer to the letters which she claimed to- have written to the defendant. The state having made a demand on the defendant to produce the letters in question, and he having failed to do so, it was proper for the state to introduce testimony of their contents. No-r do we think the court erred in permitting the state to introduce in evidence the unsigned letters received by her which were posted at Provo, Utah. The contents of these letters, as shown by the record, related to and were strictly confined to matters of an incriminating character against defendant which' were peculiarly within his knowledge and concerning which the prosecutrix claimed to have written him from Colorado, and about which she testified they had talked over together before she went to Colorado. Under these circumstances, and in view of her testimony that she identified one of the letters which was not typewritten as being in the handwriting of defendant, the contents of which were concerning matters directly connected with the
"We find no reversible error in the record. The judgment is therefore affirmed.